This was an action of assumpsit, brought in the Superior Court of Chicago by the appellees against the appellant. The declaration only contains the common money counts and account stated. The plea was non-assumpsit, and a verdict and judgment for the plain tiff, and a motion for a new trial, which was overruled. A bill of exceptions was filed, and the record brought here by defendants by appeal, who assign for error, 1, The overruling the motion for a new trial; 2, in admitting improper testimony; 3, in giving improper instructions to the jury; 1, in refusing the instructions asked for by the defendants; and 5, that the verdict is against the law and the evidence, and against the instructions of the court. 0
A preliminary objection is made by the appellees, that the bill of exceptions does not purport to contain all the evidence, and therefore this court cannot know there was not evidence sufficient to support the verdict.
In the case of Stickney et al. v. Cassell, 1 Gilm. 420, and again in the case of Harris et al. v. Miner, at this term, this court held that it was immaterial whether the fact is expressly stated that the bill of exceptions contains all the evidence, or is manifested in any other way.
•It is not expressly stated in this bill of exceptions, that it contains all the evidence offered, but it states, after reciting the evidence, “ the testimony here closed.” This is equivalent to an express averment that it was all the evidence heard in the cause. In practice, testimony is never considered closed, until all the evidence is heard.
The first error is not pressed upon the consideration of the court, otherwise than as involved in the argument presented on the other assignments of error, which being disposed of, will dispose of the case.
The defendants have discussed the several errors, and presented, very ably, their views upon the whole case, and we will pursue the course they have mai-ked out.
The first points they make are, that in receiving the certificates and in collecting the money upon them, appellants were bailees only—that they acted merely as the agent of the appellees, and made the collections- strictly in accordance with their letter of instructions of May 30, 1861, and were bound only to the use of such reasonable care and diligence as a prudent man, under similar circumstances, would take of his own affairs; and that having tendered, and offered to appellees, the same kind of funds as those collected, they were not in default; and that in this event no recovery could be had of them under the counts in this declaration, as they are counts for money only.
The question is, did they receive these certificates, collect them and put the proceeds in their vaults, as the proof shows they did, by mixing them up with their own moneys, as an agent merely, and was the relation between the-parties that of principal and agent ? So far as the receipt of the certificates and their collection is concerned, the appellants were the agent of appellees, and there the agency terminated. When the money was collected, it was mixed up with the general funds of the bank. It then became a deposit by the appellees, and the relation of debtor and creditor arose. It was a general deposit to their credit, to he governed by the rules which obtain in ordinary cases of deposits of money with banking corporations.
The doctrine is well established, where money is deposited in a bank, in the ordinary course of business, it does not raise a contract of bailment. The transaction amounts to a loan, without interest, and creates the relation of debtor and creditor ; the bank receives the money deposited, and undertakes to repay the same on demand, at all events. The funds are mingled with other moneys, and become an absolute debt due from the bank, for which it is liable, even though the money be lost without any fault on its part. Edwards on Bailments, 66. To the same effect is Story on Bailments, sec. 88.
With regard to a special deposit of coin, or bills, in a bank, they do not go into the general mass in the bank, they cannot be touched or used for any purpose by the bank, and must be restored to the depositor in indi/oiduo. Over such a deposit the bank is held only to the same care they take of their own funds, and are liable only for gross negligence, if it be lost or purloined from them. Foster v. Essex Bank, 17 Mass. 479.
The courts of this country recognize this as the doctrine. U. S. Bank v. Bank of Georgia, 10 Wheaton, 342; Commercial Bank of Albany v. Hughes, 17 Wend. 100 ; In the matter of the Franklin Bank, 1 Paige Ch. 249.
But the appellees contend, if the appellants were the agent simply, they, by mingling the funds of their principal with their own, or using them, became the debtor of their principal. This is the rule, as we understand it. Such an act makes the agent liable for all consequences, and to be charged in an action, if the fund is not restored on demand. Case v. Abeel, 1 Paige, 393—402; Wren v. Kirton, 11 Vesey, Jr., 377; Parsons’ Mercantile Law, 302.
In either view, the relation of debtor and creditor subsisted. The bailment terminated when the certificates were collected, and the appellees were credited on the books of the bank with the proceeds, the bank mingling them with their own funds. In this view, the citation from Story on Agency, sec. 202, has no application.
The case of the Etna Ins. Co. v. The Alton City Bank, 25 Ill. 246, is in no respect like this case. There, a note made by a person living in Missouri was sent to the Alton Oity Bank for collection, and they sent it to their correspondent in St. Louis, who neglected to present it in proper time, and give notice to the indorser of non-payment. It is wholly a different case from this, and governed by different principles, as the authorities there cited abundantly show.
The appellants insist, if they are deprived of the right to occupy the position of a mere agent to receive and collect the certificates, they are made guarantors of Illinois currency, and were so treated by the court below. They say that the appellees had full knowledge and advice of the state of the currency, and undertook all the risk of depreciation by expressly directing the proceeds of the certificates to be held in Chicago until the first of June, nearly a month after the collection.
The idea that appellants have been treated as guarantors of Illinois currency, is in one sense correct. Their own testimony shows that up to the 30th of May, appellees had no knowledge of the state of the money market at Chicago, for in their letter of that date they say, “ Thinking that exchange will be down to old rates, namely, one per cent., in a very few days, you will not remit. The time specified was 1st June, and we think that in a very few days, you will be able to remit at about one or two per cent.,” etc. And appellants, in reply of June 1st, say, ££ You are much mistaken with regard to the rates of exchange. It cannot be had to-day better than sixty cents on the dollar.” If, then, the appellants supposed at this date, they were holding a particular kind of funds at the risk of the appellees residing in New York, they surely would not have permitted so many days to pass without giving them the necessary information. Their failing to do so shows, either they intended to guarantee the money, or, that, being in any event responsible for the amount, it was not important that appellees should know anything about the state of the money market. If they were agents to collect this money and remit it, they certainly were very remiss in their duty, in not informing their constituents of the downward tendency of the exchanges. What if appellees did instruct appellants not to remit, was not this for the benefit of appellants ? It is generally understood the longer a bank can keep a deposit for which they pay no interest, and on which they make money by loans, it being in fact, an increase of their capital, and on which they can extend their line of discounts, that a favor is intended to the bank. They form a large part of banking facilities. The appellants did not regard this as a special deposit, the risk of depreciation to be borne by the depositors, for it went into the general moneys of the bank, and the cashier states, a special deposit is set apart at the risk of the depositor. Surely, it cannot be pretended, this was a special deposit at the risk of the depositors for depreciation, embezzlement or felony, or in any other respect. These proceeds were placed to the credit of the depositors, and therefore were not held by the bank as bailees, and if they are lost, even without the fault of the bank, the depositors are entitled to payment. This is shown by the authorities we have already cited, and reference may be had to the case of the Commercial Bank v. Hughes, 17 Wend. 94, to the same effect.
The appellants insist, and this is their third point, that they have not been in default at all, because they tendered and offered appellees the kind of funds they collected on the certificates, and that in no event could they be recovered under the counts in the declaration which are the common money counts only.
This presents two points for consideration. How does it appear that appellants tendered, or offered to pay, in the same kind of funds they collected ? The record nowhere shows in what description of funds the certificates were paid. There is an entire absence of proof on that point, and the inference is not an unfair one, that they were collected in coin or its equivalent. But if they were not, there is no proof those proceeds were entered to the credit of appellees, as anything but dollars—coin. The cashier’s letter of the 6th of May, does not indicate the credit is for trash, but for $945.21—coin of the country. The letter speaks this language of the appellees : Ton have credit here for nine hundred and forty-five dollars and twenty-one cents, no more, no less. This is the common sense, as well as legal view of the transaction. Again, did the appellees authorize appellants to collect these certificates in anything but dollars? The original deposit in favor of Searles, was Illinois currency. Where is the proof that this currency was not the same as dollars ? The cashier states that “ currency ” means “ current bank notes,” “ bankable funds.” He does not define the term “ Illinois currency,” nor does he state that any local signification had ever attached to that term. He states merely of what it was composed. There is no evidence showing whether cash or bank notes were received from Adams for these certificates. The cashier states, if in the daily adjustment of accounts between appellants and Adams there was a balance in his favor to the amount of the certificates, the collection was made by canceling such balance ; but the witness did not pretend to give the state of the account between appellants and Adams at the time of the collection, nor that the appellees knew of this .practice, nor did he state what kind of bank bills, or bank notes, if any, were received from Adams.
As to the tendel-, it is not kept up by producing it in court, if it was a proper tender. But what was it ? When the demand was made by appellees, on the 14th of June, appellants offered to pay bank notes of Illinois banks, chiefly of those banks which on the railroad list of Illinois banks were rated at sixty, seventy and eighty cents on the dollar, and which were not then current bank notes—they were not at that day “ Illinois currency,” because they did not circulate as money.
Was there any obligation on the appellees to receive these depreciated notes? If so, whence did it arise? Certainly not because they had authorized the receipt of such notes, in payment of the certificates, or that they were so received, or, in fact, that any bank notes were received in their payment. The evidence of the cashier shows that on this day, June 14th, there were three Illinois banks whose notes were circulating at par with coin, or nearly so. Such notes or coin, the appellees proposed to take, when the offer to pay in discredited notes was made.
The cashier further states, that the appellants had, at this very time, bank notes more valuable than those they offered. He says, when the currency began to run down in 1860 and 1861, their bank commenced assorting the notes received— had an assorting clerk, who assorted out of the common fund the best of the money and kept it as a reserved fund. "With the residue, they paid checks and balances, and claims on the bank. That is to say, the trash they received was paid out to their customers—the good notes were reserved for their own special purposes, to be converted into coin and hoarded !
On principles of correct banking, depositors, next to bill holders, are entitled to preference. It was once, in the more virtuous days of our republic, deemed dishonorable to deny a depositor, but in this age of lax principles, it is quite a common occurrence. This offer of the depreciated notes was no tender, and the bank had better current notes reserved, nearly equal to coin, which they withheld.
The remaining question presented in this third point is, that the contract being for currency or bank notes, they could not be recovered under the counts in this declaration, they being for money.
The authorities referred to by appellants in support of this objection, have no bearing that we can perceive, on the point made. The case of Stevenson v. Unkefer, 14 Ill. 104, was a case in which the question of usury arose on a note payable in “ Baltimore bank notes ” with twelve and a half per cent, interest, and the court say, as the value of these notes was liable to fluctuate, they might become depreciated, if not valueless, in the market, by the end of the three years for which the credit was given, so that the lender might lose more than the whole interest agreed to be paid.
The case from Serg. & Eawle, 94, only decides that under the statute of Pennsylvania, a note for five hundred dollars, payable “ in notes of the chartered banks of Pennsylvania,.” is not a negotiable note, on which the indorser can sue in his own name. The same is the case in 3 Humph. 171 ; there it was decided that an action of debt did not lie upon a note payable “ in current bank notes,” and such a note was not negotiable;. The case in 7 Mo. 596, was a case where a bill of exchange made payable in currency, was held not to be a bill of exchange within the meaning of the statute of Missouri; and when a note or bill is made payable in currency, the value of the currency at the time of payment must be ascertained, in the same manner as the value of any other commodity. The case in 1 Halst. 226, decides that an action of debt will not lie on articles of agreement to pay a certain sum in bank notes, as they are not money.
This court has decided most of these questions. In Swift v. Whitney et al., 20 Ill. 145, we said that a receipt for $477.23, “ payable in currency,” was an instrument admissible in evidence under the common counts, and on default, the clerk could assess the damages. They are negotiable under our statute, if not by the law merchant. The court could assess the damages, because by “ currency” is understood bank bills or other paper money issued by authority, which pass as and for coin. This case, and the cases cited by Justice Walkeb, settle in a great measure the law of this case. For as Illinois currency had no local signification, a note payable in such currency, must be understood to be payable in coin, or in such bank notes as were current with coin requiring no proof of value, dliimde, currency, or current bills, are deemed to be the value of cash, and exclude the idea of depreciated paper money. In Moore v. Morris, 20 Ill. 258, we considered “ good current money ” to be the coin of the constitution, or foreign coins made current by act of Congress, unless there be evidence giving to those terms a local signification. • Good current money, and currency, are therefore convertible terms. To the same effect is the case of Trowbridge v. Seaman, 21 Ill. 101. We do not question the decision in 3 Littell, 245, but cannot see its application to this case. That ease rests on a foundation totally different from this. That was a contract to pay $800 “ in such bank notes as were received on deposit at a certain bank,” and the court held it was a contract to pay eight hundred paper dollars, and this count followed it in Smith v. Dunlap, 12 Ill. 184. Had these certificates been made payable in such notes as the appellants might suppose it to be their interest to receive at their counter, then they would be justified in paying out the least valuable of them in satisfaction. They could select the worst in their “ assortment.”
As to the instructions asked by appellants, the first is directly in the face of all we have said in the views here presented. It has nothing in the facts on which to base it, and it was properly refused. The evidence shows most clearly, that the moneys collected were not held by the appellants, but went into the general funds of the bank, and were subject to the use of the bank, the appellees having credit, only, for the amount. It became their own money for their own use, subject only to the claims of appellees, as any other creditor.
Ey the second instruction the court is asked to tell the j ury that appellees could not recover under the money counts, if the evidence shows the authorized receipt, by appellants, of Illinois bank notes only.
If that was the case, the instruction was improper, for, as we have shown, by decisions of this court, appellees were entitled to recover upon those counts, if the fact had been that Illinois bank notes were received as money, and treated as such. Authorities besides that of this court are numerous on this point. N. Hope Del. Bridge Co. v. Perry, 11 Ill. 169; Miller v. Race, 1 Burrow, 451; Wright v. Read, 3 Term R. 554; Ainslie v. Wilson, 7 Cowen, 662. This case decides that property paid or received as money, will support the action for money paid or had and received, the same as if money itself had been paid or received. Young v. Adams, 6 Mass. 188 ; Bank of Missouri v. Benoist et al., 10 Mo. 521; and many others might be cited.
The third instruction is ingeniously drawn. There is no evidence in the record to warrant the jury in believing appellants were authorized to take depreciated currency, or that they received such currency in payment of these certificates and held them at the risk of appellees. There is not a particle of evidence going to show it was a special deposit, or that appellants were mere bailees. The instruction, therefore, was calculated to mislead the jury. It was properly refused.
The fourth, fifth and sixth instructions were given for the appellees as asked. They do not differ materially from those refused, and present their case in a light quite as favorable as it deserved.
The instructions given for the appellees embody the views we have endeavored to present, and declare the law correctly.
We have no doubt, on the facts and law of the case, that these certificates being for “ ¡$945.21 Illinois currency,” and payable “ in like funds,” entitled the holder to receive current funds when demanded. And if no other funds were current, at the time of the demand, than coin, the coin should be paid.
The jury, however, having found only the value of the currency, at the time it was deposited, and no exceptions taken to the verdict, we can do no more than affirm the judgment.
Catón, C. J. I concur in affirming this judgment.
Judgment affirmed.